OR: Civil rights complaints shifting to courts

NOW WHAT: Labor Commissioner Brad Avakian is touting a better civil rights complaints process, but what about the cases that aren’t being heard?

By Shelby Sebens | Northwest Watchdog

PORTLAND – More workers who claim discrimination at the hands of their employers could be turning to the courts instead of the state agency responsible for investigating the claims.

A Portland woman’s whose case was turned down, along with an agency that advocates for low-wage workers, says fewer investigators at the Oregon Bureau of Labor and Industrieswill leave workers who claim abuse out in the cold.

Several rounds of budget cuts in the past few years have left the Bureau of Labor and Industries short of manpower and money, they say. Many of the case it would have investigated could end up in court, another underfunded and over-stressed state system.

Since 2007, the agency has cut two investigators in the civil rights division, bringing the total statewide to 14. All the while, Michael Dale, executive director of the Northwest Workers Justice Project, says the number of employers in the state are increasing and the number of claims are increasing.

While Labor Commissioner Brad Avakian touted an “improved civil rights complaint process” in a June news release, some workers who filed complaints were getting the cold shoulder.

The news release by Avakian stated 75 more cases a month were being closed and that “will save Oregon businesses significant legal and personnel costs.” But were they just being shifted to the courts?

“To control an ever-increasing case load, the division will close more complaints without investigation and notify the complainants of their private right of action in court,” Avakian said in a letter to legislative leadership in June, just a couple of weeks before he spoke to a joint meeting of Oregon’s Commissions on Asian, Black and Hispanic Affairs. In that setting, he said “closing weaker cases sooner will also bring more investigative resources to bear on complex or especially significant cases.”

BOLI’s mission is to protect employment rights, and the agency has divisions that investigate claims of discrimination in the workplace as well as wage theft claims.

In addition to cutting investigators, BOLI cut six wage and hour division employees, resulting in even more cases going into the legal system

Barbara Guardino said her age discrimination case was snubbed for lack of resources. She filed a complaint in September 2011, got shuffled through a few investigators and was finally told in October she didn’t have a case and it would be closed. On the advice of her attorney, she withdrew her claim before it was officially closed.

Guardino, who is 61 and works in food service, is now pursuing other avenues and says potentially 10 other women are involved in the civil rights case. She said her attorney is working on a contingency basis because it’s a strong case. She wouldn’t say who she worked for or give specifics of the case because of the legal status.

Guardino said BOLI turned her case away, and others, because the agency either can’t handle the load or is shifting priorities.

“It sounds to me as though BOLI is more interested in saving the employers’ money than in helping the employees,” she said.

State officials, however, insist the agency is working hard to protect the rights of workers by investigating about 2,000 cases a year and recovering nearly $1 million in awards recovered through conciliation and settlement.

BOLI spokesman Charlie Burr said all complaints are reviewed to see if they warrant further investigation or for possible settlement.

“If there’s not a settlement, we then evaluate whether the case is appropriate for prosecution. Regardless of whether BOLI moves forward with a prosecution, all workers are entitled to file civil charges to have their day in court,” he said.

Cuts to BOLI concern the Northwest Workers Justice Project, a workplace rights agency that gives legal support to low wage workers and their organizations, Dale, its executive director, said. But he doesn’t fault the agency.

“They’re being asked to do more with less and less and less,” he said.

Dale, who has been a civil rights lawyer in Oregon for decades, said the downward spiral of BOLI funding started 15 years ago and now the agency has fewer resources in terms of staffing than it did in 1977.

He said with fewer investigators, the cases that are harder to prove likely are being pushed aside.

“It is a concern,” he said.

But that doesn’t mean those workers’ rights haven’t been violated, he said.

Pushing cases to the courts adds another layer of problems. Not everyone can afford a lawyer, and the justice system already is strapped. Its budget also has been slashed. In 2011, then Chief Justice Paul DeMuniz ordered the courts closed on selected days to make up for the loss of funds.

“That just relocates the cost problem from the administrative agency to the court,” Dale said.

Dale said the answer is a combination of more resources for BOLI and better laws to protect workers, especially temporary workers or subcontractors who often do not have the means for recourse in wage loss cases.

Burr said the governor’s proposed budget for 2013-15 does not include cuts to BOLI.

Contact Shelby Sebens at Shelby@NorthwestWatchdog.org, or follow her on Twitter @ShelbySebens. For more Northwest Watchdog updates, visit NWWatchdog on Facebook and Twitter.